The Content of the Quasi Categories

This is most easily taken straight from JustinianвЂ™s Institutes. Quasi- contractual obligations are considered at J.3.27, quasi-delictual at J.4.5:

On Obligations Quasi ex Contractu (J.3.27)

We have finished examining the types of contract.

Let us turn to those obligations which cannot properly be said to arise from a contract but which can however, in that they do not owe their substance to a delict, be understood as arising quasi ex contractu. i. [intervention in anotherвЂ™s affairs (negotiorum gestio)] Thus, when someone intervenes in the affairs of another when he is away (absentis negotia gesserit) actions arise in each direction between them called the actiones negotiorum gestorum (the actions for intervention in anotherвЂ™s affairs). The person to whom the affair belongs (dominus rei gestae) has the direct action, and the intervener (gestor) has the counter-action for intervention. it is obvious that these actions do not properly arise from any contract. For they come into being in the very case in which anyone puts himself forward to conduct anotherвЂ™s affairs without being given any mandate to do it. it follows that those whose business is done come under an obligation even when unaware of what is happening (etiam ignorantes). And this was established as good public policy (utilitatis causa) to stop the affairs of the absent running to ruin if some sudden urgency drove them to leave without entrusting to someone the manageВment of their interests. Certainly nobody would look after them without an action to recover his outlay. But, just as an intervener who has usefully conducted the business holds the other to whom it belongs under an obligation to him, so vice versa he himself must also render an account of his management. And for that case he is obliged to answer to the highest standard of diligence (ad exactissimam diligentiam).

And it is not enough for him to show such attention as he usually shows in his own affairs if it happens that another more attentive person would have conducted the intervention more successfully. 2. [guardianship (tutela)] Furthermore guardians made liable in the trial arising from guardianship also cannot properly be underВstood as coming under an obligation by virtue of contract (for there is no deal at all contracted between guardian and ward). But, since a guardianвЂ™s liability is certainly not delictual, he is taken to become liable quasi ex contractu. Here too the actions are reciprocal. For not only does a ward have the action on guardianship (actio tutelae) against his guardian, but also the guardian from the other side has the counter-action on guardianship against the ward for the case in which he has spent anything in the wardвЂ™s interest or incurred an obligation for him or charged his own property to the wardвЂ™s creditor. 3. [involuntary common ownership (communio incidens)] Again if some asset is shared between people who have not agreed to be partners (sine societate) as where it is bequeathed or given to them both equally, each is liable to the other in the action for division of shared property (actio communi dividundo) as, say, because he alone took the fruits of the thing or because his socius bore the burden of necessary expenditure upon it. This obligation cannot be understood as properly deriving from contract in that no terms are agreed between them. Yet, in that the liability does not come from delict, it seems to arise quasi ex contractu. 4. The same legal analysis applies where someone comes under an obligation to a co-heir on similar grounds in the action for division of an inheritance (actio familiae erciscundae). 5. An heir also cannot be understood as incurring a properly contractual obligation to pay legacies. For the legatee cannot rightly be described as having concluded any deal either with the heir or with the deceased. But because his obligation is not born of wrongdoing his debt is understood to arise quasi ex contractu.

6. [payment of something not due (indebitum solvere)] Again the person to whom a payment which is not due is mistakenly made is taken to incur a debt quasi ex contractu. To such an extent is it true that he does not properly come under a contractual obligation that if we stuck to a more logical analysis we might rather say, as was mentioned earlier, that his obligation arises ex distractu, not ex contractu [from discharge rather than from contractвЂ”but the word-play cannot be reproduced in English: вЂ?from un-contract rather than contractвЂ™]. For one who gives money with the intention of performing a duty appears to give it for this purpose, namely to untie rather than to tie up a transaction. Yet despite this the recipient comes under an obligation just as though a loan (mutuum) had been given to him. Which is why the condictio lies against him. 7. In some cases it is not possible to recover a payment mistakenly made when not due. Thus the older jurists made it a maxim that wherever denial doubled liability (ex quibus causis infitiando lis crescit), in those cases there would be no recovery of what was paid when not owed, as for instance under the lex Aquilia and under legacy. But those older jurists applied this to only those legacies which were left to someone in exact certainty by the imposition of an obligation on the heir (quae certa constituta per damnationem cuicumque fuerant legata). HowВever, our enactment has made all legacies and trusts by will into one kind and has applied this increase of liability to all such legacies and trusts but not in respect of all recipients. The rule now applies only where the legacy or trust is to holy churches or other sacred places endowed for the sake of religion and piety. Such gifts once paid cannot be recovered if they turn out not to have been due.

On Obligations Arising Quasi ex Delicto (J.4.5)

[the judge who makes a case his own] If a judge вЂ?makes a case his ownвЂ™ (si iudex litem suam fecerit) he does not appear to come under an obligation which is properly ex maleficio (from wrongdoing).

But his obligation is also not contractual and he is certainly seen to have incurred some blame even through want of knowledge (et utique peccasse aliquid intellegitur licet per imprudentiam). For these reasons he seems to become liable as though from wrongdoing. And he will have to bear such penalty as the conscience of the court deems fair on the facts of his case. 1. [things thrown or poured from a dwelling] Again if something is thrown down or poured down from a dwelling in such a way as to harm someone, the person whose dwelling it is, whether he owns it, hires it or lives there free, is taken to come under an obligation as though from wrongdoing. And the reason why he is not properly said to incur an obligation from wrongdoing is that frequently his liability arises from the fault (culpa) of someone else, perhaps of a slave or a child. [things dangerously placed or hung] Similar to his case is that of the man who, in a place where people commonly pass, has something placed or hung in such a way that if it fell it could harm someone. For that case a penalty of ten aurei is laid down. On the other hand, for

something thrown or poured an action is given for double the value of the loss caused, while in the case of a free man there is a penalty of fifty aurei if he is killed and an action for as much as seems fair to the judge on the facts if he survives but is injured. And the judge should take into account the fees paid to a doctor and all the other expenses of the cure as well as the earnings lost or to be lost because of the faculty which has been impaired. 2. If a son in power lives separately from his paterfamilias and something is thrown or poured from his dwelling or he has something placed or hung so as to be dangerous if it falls, Julian held that there is no action maintainable against the father but that the suit must be brought against the filiusfamilias himself. The same applies in the case of a filius who is a judge and makes the case his own.

3. [ships, inns, stables (adversus nautas, caupones, stabularios)] Again where any fraud or theft is committed in a ship, inn or stable the owner running the business (exercitor) comes under a liability quasi ex maleficio, so long as the maleficium is in fact not his own but that of one of the people through whose labour he manages the ship, inn or stable. The reason this is quasi ex maleficio is that the action given against him for this case is not based on contract and yet he is to a certain degree blameworthy in relying on the service of bad men. The action for these cases in in factum and is available to the heir of the person to whom the claim accrues but not against the heir of the person against whom it accrues.

According to these accounts in the Institutes there are therefore five quasi-contractual events and four quasi-delictual events. Quasi- contractual are (1) intervention in another's affairs, (2) becoming a guardian, (3) becoming a co-owner (where that is thrust upon you willy-nilly), (4) receiving an inheritance subject to legacies, (5) receiving a mistaken payment wrongly supposed to be due. Quasi-delictual are (1) as a judge, making the case one's own, (2) a throwing or pouring from a dwelling occupied by the defendant, (3) a dangerous placing or hanging on premises occupied by the defendant, and (4) theft or fraud in a ship, inn or stable run by the defendant.

so far as concerns the quasi-contractual events the list is the same, subject to one exception, as that attributed to Gaius at D.44.7.5. pr.-3.² The one difference is that the Digest list is shorter by the omission of the co-ownership case. No other events are anywhere called quasi- contractual. Do any others count as falling under the same label? Almost certainly mistaken payment is meant to stand for the whole non-contractual spectrum of events giving rise to the condictio. This needs a short explanation.

We have encountered the condictio many times. It was the action which claimed a ius civile duty to give a certum, either a fixed thing (Daisy) or fixed quantity (50 kilos of corn) or a fixed sum (£20). The legal category formed by the action was based on a unity of content or type of claim (certum dare), not on a unity of event at any level of generality (sale, contract, furtum, delict).

The modern category of вЂ?debtвЂ™ is similar. Indeed it is all but completely safe to translate condictio as вЂ?action for debtвЂ™. Such categories cut across unities of event. Any event can give rise to the condictio so long only as it triggers an obligation certum dare. So when the division between contract, delict and other events was held up against the much older legal category of the condictio its effect was to break up the condictio, at least in the sense that some of the condictio events then seemed to live in one compartment as conВtracts and others not. We have seen that three condictio-events (or, as one might say, three causes of indebtedness) rested on agreement and could be seen as contracts. These were stipulatio (for a certum dare),^[95] expensilatio (the contract by written transcriptions)^[96] and mutuum (the contract of loan for consumption, as opposed to loan for use and return).^[97] These three events constitute the contractual part of the spectrum of condictio-events.

The mistaken payment supposed to be due is the most prominent member of the non-contractual part of the spectrum. The rest of it is notoriously difficult to divide and name with satisfactory precision. The Digest uses the following heads. D.12.4 is called De condictione causa data causa non secuta (On the condictio in respect of things given on a basis, which basis fails to sustain itself). This covers two types of cases which show signs of being distinguished but may not need to be. Either I pay on account of a state of affairs which you, the recipient, are to bring about, as for instance because you are going to marry my daughter or because you are going to free such and such a slave, or I pay simply on account of a state of affairs which is nothing to do with you but is merely essential to my intention that you should receive the payment, as for instance вЂ?because I am dyingвЂ™. And then you do not marry my girl, do not free the slave or I do not die. So the basis of my

giving falls away. It fails to materialise or fails to sustain itself, as the case may be.

D.12.5 is De condictione ob turpem vel iniustam causam (On the condictio for what is given for a disgraceful or unlawful cause). This covers the case in which the causa of the payment may well have been sustained but where it was disgraceful or unlawful for the recipient to take anything on that account. He is paid not to commit theft. He does not commit theft. So it cannot be said that the basis fails. But it is turpis to take money not to steal. Whence the condictio for recovery. A distinction is drawn between cases where the taint is shared or on the giver's side alone, in both of which restitution is refused, and where it is on the recipient's side only, which is when restitution is allowed by means of the condictio. If I give money to corrupt a judge there is no question of recovery, because the turpitude is shared between briber and bribee.

Then D.12.6 is De condictione indebiti (Concerning the condictio in respect of what is not due). The indebitum is the case with which we are already familiar. There is room for much argument as to whether it is analytically distinct from or rather a special case of causa data causa non secuta. It is certainly true that in some cases a payment mistakenly supposed to be due can be analysed as a payment on a basis (for discharge) which fails to materialise (because there is no debt to discharge). But it may be that there are sound reasons for keeping the two distinct. One may be that you can recover an indebitum without having to show that you specified (i.e. communicated to the other) the intended basis of the payment whereas under the other head you did have to communicate the reason if you were afterwards to complain of its failure. But this is uncertain.

Then D.12.7 is De condictione sine causa (On the condictio for what is given without a basis). The words sine causa are probably better transВlated вЂ?on a basis which is void'. Without this ground a wrong concluВsion sometimes seems inescapable. Wrong in the sense of undesirable. If I pay because I have lost your clothes at my laundry and then a week later the clothes turn up I cannot say I did not owe. And the basis of my payment (the discharge of my liability) does materialise and sustain itself, for undeniably I was liable and do remain discharged. But we can (just about) say that the discovery of the clothes makes nonsense of the basis on which I paid and nullifies it. Or again if a dowry is paid by a woman to a man within the prohibited degrees, resting recovery on nullityвЂ”that a dowry is a legal impossibility in such circumstancesвЂ” may serve to outflank arguments which the man might use against a condictio causa data causa non secuta. As for instance that though the basis had failed (no marriage) nevertheless the failure meant that she became party to the crime of incest and thus became barred from recovery: for in pari delicto potior est conditio defendentis (In shared guilt the defendantвЂ™s position is stronger: cf D.12.7.5). He wants to say that she cannot recover because she cannot be heard to complain of the failure of any incestuous marriage. To which she says that she is not complaining of the failure on that basis but only of the initial nullity. With goodwill, it is possible to accept the distinction. But nobody can pretend that the condictio for a void cause is easy.

D.13.1 is De condictionefurtiva (On the condictio for what is obtained by theft). This is the anomalous case in which the claim is allowed against the thief вЂ?that he ought at civil law to give the res to the plaintiff вЂ™ even though the res already belongs to the plaintiff and cannot, accordВing to the interpretation of dare, therefore be given to him. G.4.4:

And with actions thus distinguished, it is certain that we cannot claim what is ours from someone else by this form of words: вЂ?If it appears that he ought-at- civil-law to giveвЂ™. For what is ours cannot be given to us, it being understood that something is given to us when it is so given that it becomes ours. And what is ours already cannot become more so. It is plainly from hatred of thieves, in order to make them liable in more actions, that the law has accepted that they should be liable, in addition to the penalties of double and quadruple, also even to this action: вЂ?if it appears that they ought-at-civil-law to giveвЂ™. This is allowed to enable an owner to recover his asset (rei recipiendae nomine) and even despite the fact that the action in which we claim that something is ours is available against them as well.

The last case is D.13.2 De condictione ex lege (On the condictio based on statute). This is a title with only one fragment, which affirms that if a lex imposes an obligation and says nothing about the action, nevertheless the lex is taken to authorise an action. And from that we have to infer that in classical law the condictio was given for all statutory claims so long as they had the condictio content (certum dare). So this stands for a miscellany of statutory events triggering impositions, fees and other dues.

This survey allows us to put together a view of the non-contractual part of the spectrum of condictio-events: receipts for a basis which fails, receipts disgraceful to the recipient, receipts of mistaken payments not due, receipts on a basis which is void, receipts by theft and miscellanВeous statutory impositions. The proposition from which we started was that, probably, the receipt of mistaken payments was meant to stand in the quasi-contractual category to represent all these. Probably. The list may never have been closely examined. There is room for a long argument on the question whether receipts by theft (for which the event is furtum) can belong in quasi-contract as well as in delict.

In the category of quasi-delict the four named figures are, so far as we know, the only ones intended to belong to it. None is there merely as the representative of a family in the way that the indebitum is probably meant to represent the other non-contractual condictio-events in quasiВcontract. Furthermore it is obvious that the quasi-delictual figures are much less important than the quasi-contractual. No system can do without law on uninvited interventions, mistaken payments, legacies and so on. Special liabilities of occupiers, innkeepers (though possibly not of judges) are optional, even quirky.

The one quasi-delict which does need some explanation is the judge's idiomatic litem suamfacere. The idiom conceals the thumbnail sketch which names usually convey. And unfortunately the texts do not allow us a clear picture of the judicial failing involved. Bias comes first to mind. It is not only the typical judicial fault but also matches up with the idea of вЂ?making a case one's own'. For partiality involves taking sides, joining in, not remaining on the sidelines. Texts which speak of malicious refusal to apply the law, as by ignoring a statute, are compatible with that starting-point. But there is a difficulty. The passage given earlier says that the judge can become liable per impruВdentiam, and imprudentia, whether it means in this context simple lack of malice (negligence rather than dolus) or specifically lack of legal learnВing, is a cause of wrong judging which is incompatible with bias. It is not impossible that there was a division within litem suam facere such that for some failings liability would attach only on proof of malice (getting his law wrong), and for others (ignoring the instructions in the formula, not turning up) either no malice or perhaps even no fault at all had to be proved. At all events a general liability for incorrect decisions is implausible if extended beyond malice. It would have made the office of iudex too dangerous. Disappointed litigants would have been for ever re-opening the question by suing their judge.

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Source: Birks Peter. Roman Law of Obligations. Oxford University Press,2014. вЂ” 303 p.. 2014

The Content of the Quasi Categories

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